Legal concerns prevent H.B. council from taking new Poseidon stance

May 7, 2013

Updated Aug. 21, 2013 1:17 p.m.

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Poseidon Resources needs final approvals from the State Lands Commission and the Coastal Commission before starting consruction on its $350 million facility at Pacific Coast Highway and Newland Street. The project was approved by Huntington Beach City Council in September. PHOTO COURTESY POSEIDON RESOURCES INC.

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AES power plant in Huntington Beach. FILE PHOTO

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Opposed to the Poseidon project, Carol Maytubby, of Huntington Beach, listens to fellow residents voice their opinion about the plan at the Huntington Beach City Council meeting in 2006. The Poseidon proposal would be the country's largest water desalination plant if approved. FILE PHOTO

Poseidon Resources needs final approvals from the State Lands Commission and the Coastal Commission before starting consruction on its $350 million facility at Pacific Coast Highway and Newland Street. The project was approved by Huntington Beach City Council in September.PHOTO COURTESY POSEIDON RESOURCES INC.

HUNTINGTON BEACH – The Poseidon Desalination plant came close to losing the official support of the Huntington Beach City Council this week.

Though two previous councils issued construction permits to Poseidon, five of seven council members on Monday expressed support for a proposal by Mayor Connie Boardman that a letter be sent from the council asking the California Coastal Commission to deny Poseidon a key permit.

But the letter was not sent. In the face of threatened legal action from Poseidon's lawyers, otherwise sympathetic Councilman Jim Katapodis proposed that council members send letters individually rather than as a body.

"I have some concerns about Poseidon and as I said before about the process but I think, as a council member, to be responsible to the city and not to open us to litigation, I'm going to move to vote no on the letter. We can send our own letters," Katapodis said.

That motion passed 4-3. Boardman and council members Jill Hardy and Joe Shaw dissented.

Before the vote, the council heard about two and a half hours of public comment about the 50-million-gallon-per-day Poseidon plant, which could get its final review by the Coastal Commission at one of its meetings June 12-14.

Boardman's letter said the Coastal Commission shouldn't permit the portion of the project in its jurisdiction without revisions that bring it in line with the Huntington Beach's coastal code.

"We believe that significant changes to the project may be required to resolve the substantial issues we find were in violation of our Local Coastal Program," the letter read.

It cited a Coastal Commission staff report issued one month after Huntington Beach approved the Poseidon project, after two commissioners and three conservation groups appealed the city's decision in October 2010

The report said the city-issued permit wasn't consistent with commitments to protect marine life and water quality, energy use and public recreation. Poseidon contended the report contained some factual inaccuracies.

Conservationists and residents asked the council to send the letter, while local water agencies, business and labor advocates from around Southern California, Poseidon officials and representatives of state lawmakers lined up against Boardman's letter.

Advocates said the plant would draw millions of dollars in revenue to the county and Huntington Beach while providing a reliable and local source of water. Some see potable water as an increasingly valuable commodity as increasing development in the Western U.S. contends for limited and possibly dwindling use of the Colorado River.

"We're reliable as long as we continue to develop local resources," said Metropolitan Water District of Southern California board member Brett Barbre, referring to projections that the county's water needs will be met for the next 25 years.

"We believe this is an important part of the water supply for Orange County and beyond," Barbre said.

Opponents contended that desalination is a financially and environmentally costly way to create water – the system uses electric power to remove salt from seawater.

They said the briny byproduct would kill fish on the coast between Newland and Brookhurst streets and the potable water produced would be too expensive to sell.

The hot-button issue drew 455 e-mails, the City Manager's office reported to the council, with the majority supporting a denial of the CDP.

But council members were limited to what they could say for or against the project – the matter wasn't on the agenda and the city already issued a Coastal Development Permit in 2010. Council members could only restate comments about Poseidon they'd previously made on the record.

Poseidon lawyer Christopher Garrett wrote before the meeting to acting City Attorney Mike Vigliotta saying that sending the letter without a public hearing would violate city code, the Brown Act and the Coastal Act.

Vigliotta told the council he couldn't guarantee the city or the council would be safe from a lawsuit if they were to send the letter or discuss the merits of the Poseidon project itself, rather than the merits of advocating to the Coastal Commission.

Garrett wrote that his warning should be considered "'potential litigation,' which would justify a closed session on the item," though he said at the meeting that phrasing it as such was simply "the magic language" needed to swiftly grab the council's attention.

However, Boardman said she was confident her letter didn't require a public hearing since it had nothing to do with prior city actions.

"We are not overturning and rescinding anything. We are a new council...and I wanted to give this body a chance to express its opinion," she said.

Poseidon has been working its way through the approval process since 2006, when it received city approval to build and operate the facility. Changes to the plant's plans warranted changes in 2010, when an Environmental Impact Report and new building permit application were accepted by Huntington Beach.

Earning the Coastal Commission permit is the last step before Poseidon can begin construction, according to Poseidon Vice-President Scott Maloni, who said he was in San Francisco Tuesday to meet with the Commission for a review of the application necessary before it comes to a hearing.

Maloni said he was confident the permit would gain approval, saying it was nearly identical to one the Commission already granted Poseidon for its Carlsbad plant, expected to be online in 2016.

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